JUDGMENT : P.SAM KOSHY, J. Heard Mr. Ali Farooque, learned counsel for the appellants and Mr. Syed Ahmed Ali, learned counsel for the respondent. 2. These are two Family Court Appeals filed by the appellants herein against the order dated 24.05.2024 passed in two O.P.s on the file of the Judge, Principal Family Court-cum-XIII Addl. Metropolitan Sessions Judge, Hyderabad (for short the ‘Family Court’) between the same parties i.e. the appellants and the respondent in O.P.No.1433 of 2021 and O.P.No.1865 of 2021. 3. O.P.No.1433 of 2021 was filed by the respondent seeking for custody of his two minor children namely Syeda Khatija Nausheen, born on 09.11.2019 and Syed Mujtaba Abdul Nasir, born on 07.12.2020. Likewise, O.P.No.1865 of 2021 is one which has been filed by the appellants herein seeking to appoint them as a permanent guardian and custodians of the two minor children namelySyeda Khatija Nausheen and Syed Mujtaba Abdul Nasir. O.P.No.1433 of 2021 stood allowed granting custody of the afore mentioned minor children to the respondent who is the biological father of the two children, and at the same time, the Family Court has granted the appellants herein the visitation rights of the minor children on every Sunday between 9:00 AM to 6:00 PM and fifteen days time during the summer vacation every year till the two minor children attain the age of majority. Whereas, O.P.No.1865 of 2021 was dismissed with the aforementioned visitation rights that were conferred on the appellants. 4. It is these two judgments which have been challenged by the appellants in the instant two appeals. 5. The facts of the case, in brief, are that the appellants in the instant two appeals are father-in-law and mother-in-law of the respondent and they are also the maternal grandparents of the two minor children whose custody they are seeking. The respondent is the biological father of the two minor children, the custody of whom has been given to him. The daughter of the appellants late Muniza Hasan Khan was married to the respondent on 20.04.2018 and two children were born from the said wedlock. One Syeda Khatija Nausheen was born on 09.11.2019, and thereafter, a male child Syed Mujtaba Abdul Nasir was born on 07.12.2020. However, unfortunately, the mother of the two children i.e. the wife of the respondent and daughter of the present appellants died on 06.06.2021 because of a disease known as (Lymphangioleiomyomatosis) (LAM) (lungs infection). One Syeda Khatija Nausheen was born on 09.11.2019, and thereafter, a male child Syed Mujtaba Abdul Nasir was born on 07.12.2020. However, unfortunately, the mother of the two children i.e. the wife of the respondent and daughter of the present appellants died on 06.06.2021 because of a disease known as (Lymphangioleiomyomatosis) (LAM) (lungs infection). When the mother died, the second child was approximately 6 months old and the elder daughter was approximately 1½ years of age. At that point of time, it was the appellants who took custody of these two children and it is they who are bringing up the children with care and protection. However, the respondent i.e. the son-in-law of the two appellants herein filed O.P. under Section 7, 10 and 25 of the Guardian and Wards Act, 1890 seeking for custody of the afore mentioned two minor children. It is this petition which stands allowed by the Family Court with the visitation rights granted in favour of the appellants herein on every Sunday between 9:00 AM to 6:00 PM and with fifteen days of custody during the summer vacation every year till the children attain the age of majority. 6. When the respondent had filed a petition seeking for custody, the appellants who are grandparents of the minor children filed another petition under the same provisions of the Guardians and Wards Act they in turn claiming the guardianship and custody of the minor children. It is this petition which has got rejected except for visitation rights mentioned above. 7. Learned counsel for the appellants referring to Section 352 of the Mahomedan Law which deals with the right of the mother of infant children and also Section 353 which governing the principles of child custody, particularly in the context of female relationship in default of mother, the maternal grandparents have the legal right to have custody of the two minor children and which the Family Court has not properly appreciated. Therefore, the appeals warrant interference with the impugned orders. 8. Therefore, the appeals warrant interference with the impugned orders. 8. In this connection, the learned counsel for the appellants referred to a Division Bench’s decision of the Kerala High Court in the case of Poolakkal Ayisakutty vs. Parat Abdul Samad 2005 AIR (Kerala) 68 and contended that in terms of the aforesaid legal position so far as Section 353 is concerned, in the absence of mother being available as per the personal law of Muslims the children have to be in custody of the mother’s mother and only thereafter would the right be available to the father’s mother and father is not included in Section 353. 9. It was also the contention of the learned counsel for the appellants that even otherwise since the two children were from very young age been in the custody of the appellants, there is a great element of bondage that has developed between the minor children and the appellants and at this juncture any detachment to that bondage can have long term ramifications so far as the mental framework of the children is concerned. Therefore, taking into consideration the interest of the children which has to be given paramount weightage, at this juncture, it is not advisable for granting the custody of the children to the respondent and the impugned orders to the aforesaid extent needs to be interfered with. 10. It was further contended that it may not be advisable at this juncture to grant custodial rights to the respondent for the reason that subsequently the respondent has got remarried and it is not certain whether the present wife of the respondent would take proper care of the children and the respondent has not led any evidence of his second wife stating that she is willing to accept the custody for upbringing of the two children. In the absence of which also the Family Court should not have granted the custodial rights of the two minor children to the respondent. 11. Lastly, it was contended by the learned counsel for the appellants that the respondent does not have sufficient means to take care of the two children and as the welfare of the children being of paramount consideration, the children must be left in the custody of the appellants herein. 11. Lastly, it was contended by the learned counsel for the appellants that the respondent does not have sufficient means to take care of the two children and as the welfare of the children being of paramount consideration, the children must be left in the custody of the appellants herein. It was also alleged that right from the time of death of the wife of respondent and the mother of the two minor children, the respondent has not spent a penny for their upbringing. Neither has he granted any amount towards maintenance of the two children. As such, the respondent does not have any moral or legal right to claim the custody. It was further contended that the respondent did not take care of his wife well and there was ill-treatment of his wife and cruelty met towards her and he had also not paid any money towards treatment of his wife and the entire expenses of treatment were born by the appellants which also would reflect that he does not have any sufficient means at the first instance and that he also does not carry any love and affection towards his wife or children. On this basis also, the claim of the respondent seeking custody should had been rejected and the claim of the appellant seeking for custodial rights ought to have been granted. 12. Per contra, the learned counsel for the respondent denied all the averments and contentions raised by the appellants and stated that the impugned orders does not warrant any interference as they are well reasoned orders taking into consideration the entire factual matrix those were brought before the Family Court and which has been appreciated and discussed in great detail by the Family Court while passing the impugned orders. It was the contention of the learned counsel for the respondent that all the averments which the learned counsel for the appellants have tried to raise in these appeals and which he has contended in the arguments have been threadbare discussed by the Family Court while deciding the O.P’s. Therefore, the appeals being devoid of merits deserve to be rejected. 13. 13. Learned counsel for the respondent contended that the respondent at that relevant point of time was working with the company Amazon and he had the medical insurance coverage of his wife and as such the entire expenses for both the deliveries and also for subsequent treatment of his wife were all through the said insurance coverage. He further contended that the Family Court in very categorical terms found that the appellants not being able to prove the allegation and contention of they having met the medical expenses and the respondent having not paid any attention to the medical expenses and the medical needs of his wife. In the absence of any documentary proof led by the appellants, the oral contentions and averments cannot be accepted. 14. Further, it was contended by the learned counsel for the respondent that as regards the maintenance of their children there was a specific evidence given by him in the Family Court which has gone unrebbuted and not countered with by the appellants. According to him, initially on a couple of occasions he had tried to give maintenance part to the appellants, but the appellants deliberately refused to accept the same and also thrown away the maintenance amount that the respondent had offered for upbringing and up keeping of the children. It was also contended that, in fact, the respondent had remarried only with an intention of his second wife being able to take care of the two minor children born from his first wife and that she is ever willing to take of the two minor children treating to be their own children and only because the respondent has entered into second marriage by itself cannot be a disqualification from having the custody of his children born from his first wife since she expired due to illness. 15. It was also the contention that subsequently the respondent has resigned from the services of Amazon and now carrying on his business and that he has sufficient income generated from the said business which would enable him to take care of his two minor children. 15. It was also the contention that subsequently the respondent has resigned from the services of Amazon and now carrying on his business and that he has sufficient income generated from the said business which would enable him to take care of his two minor children. It was further contended since the respondent is the biological father of the two minor children coupled with the fact that he has means available for their upbringing and upkeeping, there is no occasion why the respondent, the father of the minor children, not being entitled the custody of the minor children. 16. Thus, for all the aforesaid reasons, the learned counsel for the respondent contended that the two appeals may be rejected. 17. Having heard the contentions put forth on either side and on perusal of records, it would be relevant to take note of the decision of the High Court of Andhra Pradesh in the case of Saiful Islam Habeeb Ali v. Asma Begum 2013(6) ALT 641 wherein in paragraph Nos.10 to 12 it was held as under: “10. For the purpose of child custody, it is well settled that the paramount consideration, for using the discretion of the Court for grant of custody, is the welfare of the child and well-being of the child. Though the appellant is claiming custody mainly relying on the provision under Section 352 of the Mahomedan Law on the ground that as the respondent-mother of the minor child has married again, as such, the appellant being the father is entitled to the custody. Section 352 of the Mahomedan Law reads as under: “352. Right of mother to custody of infant children:- The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.” 11. From a reading of the above provision, it is clear that mother is entitled to the custody of her male child until he completes the age of seven years and of her female child until she attains puberty, and such right will continue though she divorced by the father of the child unless she marries second husband, in which case custody belongs to the father. 12. From the reading of the aforesaid provision, it is clear to us that the mother is having absolute custody with regard to female child until she attains puberty and such right will continue beyond such period only in the event of not contacting second marriage by the respondent-mother. But, only on the ground that the respondent has married second husband, without mentioning the age of the girl child, the appellant cannot claim for custody. In the case of Mohammed Jameel Ahmed Ansari Vs. Ishrath Sajeeda and others (supra) , the Division Bench of this Court has held that the children are normally expected to be in the custody of legal guardians. Under Muslim law, after the age of 7 years, it is the father who is entitled to the custody of the child, unless the Court holds on evidence, the father is not a fit person or that is not conducive to the health whether physical or mental of the child. Ordinarily, the children are to be with the father. In the case of Mir Mohamed Bahauddin Vs. Mujee Bunnisa Begum (supra) , a Single Judge of the Madras High Court has held that by reason of contact of second marriage by the mother, she cannot be the natural guardian when the father of the child is alive.” 18. So also it is necessary to take note of the relevant portion of judgment which in fact has already been relied upon by the learned counsel for the appellants i.e. Division Bench judgment of the Kerala High Court in the case of Poolakkal Ayisakutty (supra) wherein in paragraph Nos.4 and 5 the Division Bench of Kerala High Court has held as under: “4. We are of the view when the question of the custody of the child is involved, the primary consideration which weighs with the court is the welfare of the child. Legal position is well settled by a catena of decisions of this court as well as that of the Apex court. Reference may be made to the decision of the Apex court in Jai Prakash Khadria v. Shyam Sunder Agarwalla, 2000(3) RCR (Civil) 143 (SC) : ( 2000 (6) SCC 598 ) and R.V. Srinath Prasad v. Nandamuri Jayakrishna, 2001(2) RCR (Civil) 709 (SC) : ( 2001(4) SCC 71 ). Reference may be made to the decision of the Apex court in Jai Prakash Khadria v. Shyam Sunder Agarwalla, 2000(3) RCR (Civil) 143 (SC) : ( 2000 (6) SCC 598 ) and R.V. Srinath Prasad v. Nandamuri Jayakrishna, 2001(2) RCR (Civil) 709 (SC) : ( 2001(4) SCC 71 ). It is settled principle of law that custody orders, by their very nature, can never be final but a challenge should only be made if it is in the paramount interest of the child concerned. Custody of a minor is also a matter involving sentimental attachment. Such a matter is to be approached and rackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance. Principles exported by Personal Law and the provisions referred to herein before cannot read in isolation and the divorced under the provisions of the Guardian and Wards Act. Several decisions were cited at the bar for and against. See : Rafiq v. Smt Bashiran (AIR 1963 Rajasthan 239), Salamat Ali v. Smt Majjo Begum (AIR 1985 Allahabad 29), Alias Bibijan v. Mohammad Ghouse Mohideen (AIR 1952 Madras 284), Baby Sarojam v. S. Vijaykrishnan Nair (AIR 1992 Kerala 277), Yusuf v. Sakeena ( 1998 (2) KLT 573 ), Merlin Thomas v. C.S. Thomas, 2003(3) RCR (Civil) 304 (Kerala) : (2003(1)KLJ 633) and Chakki v. Ayyappan ( 1998(1) KLT 556 ). 5. The court would always respect the sentiments of the grandmother. Child’s mother has committed suicide. Father later remarried and has got children. Conduct of remarriage by the father of the child itself is not a ground to reject the prayer for custody. Welfare of the child is of paramount consideration. By giving due respect to the sentiments expressed by the grandmother, we are of the view, it is for the welfare of the child that the child be with the father.” 19. In the light of the afore given factual matrix and the judicial precedents referred above, if we look into the pleadings, what is apparently undisputed is the fact that the respondent in both the appeals is the natural father of the two minor children whose custody and guardianship the appellants are seeking. Being the natural biological father undisputedly the respondent is the natural guardian also. 20. Being the natural biological father undisputedly the respondent is the natural guardian also. 20. Another fact which needs an appreciation is that, till the time, the mother of the minors i.e. the wife of the respondent was alive, the relationship between the respondent and his wife was very cordial and that there was no dispute whatsoever. It is also not a case where the wife of the respondent i.e. the daughter of the appellants and also the mother of the two minors had died because of certain lungs ailment and the period of death also was during the peak COVID period i.e. on 06.06.2021. Neither are the appellants in a position to say that the death of their daughter i.e. wife of the respondent was in any manner under suspicious circumstances. Further, from the pleadings that have come on record and the materials placed before us, we do not find anything strong enough adduced by the appellants which could force us to conclude that the respondent does not have the custody and capability of taking up the responsibility of upbringing and up keeping of the children. 21. We quite appreciate the attachment that the appellants have as the maternal grandparents of the two minors are concerned, but at the same time we cannot brush aside the hard reality that the respondent is the natural guardian after demise of the mother of the minor children in the custody of being their father. Appreciating the attachment that the appellants have shown towards the children, the Family Court has already granted the visitation rights every Sunday between 9:00 AM to 6:00 PM and fifteen days during summer vacations every year till the children attain the age of majority. 22. Another reason why we are not impressed with the submissions made by the learned counsel for the appellants seeking for guardianship and custody is the fact that the appellants themselves while the children were in their custody had filed a petition before the Family Court seeking for a direction from the Court whereby the respondent may be directed for granting of maintenance for upbringing and up keeping of the children. In the said petition for maintenance it was alleged that they do not have sufficient means for sustenance of the children. In the said petition for maintenance it was alleged that they do not have sufficient means for sustenance of the children. If that be so, with no evidence and cogent proof of the respondent not having sufficient means it has to be presumed otherwise that he has sufficient means and capability and would be in a position to maintain the two children well. On this ground also, we do not find any force in the appeals filed by the appellants. 23. However, as regards the visitation rights that has been given by the Family Court towards the appellants, we are of the considered opinion that the said visitation rights can still be increased inasmuch as the minor children can be sent to the appellants on Saturday and Sunday both during the same period as has been given by the Family Court. In addition to this, the children shall also be sent to the appellants’ house during all public holidays during the same period and also for fifteen days during summer vacation every year as has been granted by the Family Court. With the aforesaid modification to the visitation rights of the appellants, we do not otherwise find any strong case made out calling for an interference on the merits of the order passed in the two appeals. 24. Both these appeals filed by the appellants thus stand rejected so far as the right to guardianship and custody of the minors are concerned. However, the visitation rights stand modified as mentioned herein above. No costs. 25. As a sequel, miscellaneous applications pending if any, shall stand closed.